In the case of Weller v Associated Newspapers ([2015] EWCA Civ 1176) The Court of Appeal has upheld a High Court finding that the publishers of Mail Online infringed the privacy of three of Paul Weller’s children by publishing unpixellated pictures of them on a family shopping trip in Los Angeles.

The claimants in were three of Paul Weller’s children: Dylan, 16, and 10-month-old twins John-Paul and Bowie. Dingemans J found that the defendant was liable for misuse of private information and/or for breach of the Data Protection Act. He awarded £5,000 to Dylan Weller and £2,500 to each of the twins. That decision is discussed in Louise Turner’s blog post here.

Grounds of appeal

Mail Online advanced two grounds of appeal:

It was not actionable to publish an innocuous photograph of a child (or any person) taken in a public street without consent where nothing inherently private is shown: to conclude that a reasonable expectation of privacy arose in such circumstances would in effect create an image right in English law when no such right exists; and

The judge should have taken account of the law applicable to the place where the pictures were taken (the taking and publication of the photographs being permitted under Californian law).

Reasonable expectation of privacy

In dismissing the appeal the Court of Appeal said the assessment of whether a child has a reasonable expectation of privacy was an objective test, in which weight was accorded to the reasonable expectation of the parents. It made the following observations:

A child does not have a separate right to privacy by virtue only of being a child.

But there are several considerations which are relevant to children which mean that a child may sometimes have a reasonable expectation of privacy when an adult would not.

All the circumstances of the case should be taken into account when deciding whether a child has a reasonable expectation of privacy: see para 36 ofMurray.

The Court considered that a child’s age could mean that when deciding on whether a child’s autonomy should be protected the conduct of the child’s parents and the experience of the court should be drawn upon to inform the decision. It noted that children are not in a position to choose whether they are in a public or a private place or to interact in a private or public way – a child’s reasonable expectation of privacy must be seen in the light of the way in which their family life is conducted. Further, a lack of parental consent to an intrusion into a child’s life was thought to carry particular weight as it is a child’s parents who frame the context for their family life.

The Court acknowledged that a young child may not be physically aware of an intrusion but it considered that the impact of publication could go beyond the effect on the child and might entail security and safety concerns or the potential for bullying and embarrassment.

The Court agreed that the nature of local law was a factor to be taken into account when considering the reasonable expectation of privacy. However, it found that the judge had taken account of the local law even though he had not indicated how much weight he had accorded to it.

The balancing exercise

While Mail Online’s Article 10 rights were not to be “trumped” by a child’s Article 8 rights, the welfare of children is a primary concern. There were difficulties in assessing the harm that might be suffered by a child from an invasion of privacy, but the court should apply “common sense and its own experience.”

The Court’s findings

In the circumstances it was found that all three of the children had a reasonable expectation of privacy. Specific weight was accorded to the fact that although the claimants were in public, they were engaged in a family activity. In the Court’s view this distinguished the case from Baroness Hale’s example of Naomi Campbell popping out to the shops to buy a carton of milk. The fact that the claimants were children was a critical factor. It did not matter that the children’s parents were celebrities: the children should be treated in the same way as those of a child whose parents were not in the public eye.

Comment

Despite the Court having recognised that children do not have special privacy rights, the judgment appears in effect to have conferred a degree of protection on children that goes beyond that available to adults. Further, the Court’s view that a “family element” gives rise to a reasonable expectation of privacy would seem to extend privacy rights beyond their proper scope as it is possible to imagine many “family” situations which do not involve children where there can be no reasonable expectation of privacy, e.g. a couple going to the cinema or a grown-up family attending a wedding. Even extending protection to events with a “family element” involving young children seems a step too far – how is the press now to understand the meaning of popping out for a pint of milk if this is not to cover anodyne domestic activities, whether or not they involve children?

Mail Online is seeking to appeal the decision to the Supreme Court.

This post originally appeared on the RPC Privacy Blog and is reproduced with permission and thanks